by Jennifer Hickey
Image via Pixabay
“Many of our problems in US maternity care stem from the fact that we leave no room for recognizing when nature is smarter than we are.”
― Ina May Gaskin, Birth Matters: A Midwife’s Manifesta
“The United States was recently dubbed “the most dangerous place in the developed world to give birth.” Over seven hundred pregnant women or new mothers die in the United States each year. Infants are dying at an alarming rate as well. Our shockingly high and ever-increasing rate of maternal mortality, particularly among Black women, has garnered significant national attention. Further, many women experience mistreatment at the hands of their health care providers, including the imposition of unnecessary or unwanted medical interventions during birth. Aside from causing emotional and physical trauma, such interventions have been directly linked to increased maternal mortality.
The state has done little to address or even examine the underlying systemic causes of this harm, particularly the role of medicalization. Birth in the United States is overwhelmingly medicalized and socially and culturally positioned as a high-risk condition in need of medical intervention, rather than a naturally occurring process in need of social support. The United States is among a small number of industrialized nations that use physicians, rather than midwives, as the primary care providers for low-risk births, yet our maternal mortality rates are significantly higher. And women who birth with midwives experience far fewer interventions and better overall treatment. Instead of taking steps to support midwifery and normalize birth without intervention, the state allows medical professionals to discredit and suppress midwifery and sometimes actively participates in this campaign by criminalizing out-of-hospital birth. In sum, the United States is failing birthing women.
Birth in the United States is overwhelmingly considered a private matter between a woman and her doctor. The perceived autonomous nature of the doctor-patient relationship, coupled with the rise of medical consumerism,functions to absolve the state of its responsibility for birth. Additionally, birth is framed as the product of individual choice, which further allows the state to ignore positive obligations towards birthing women and instead facilitates punitive responses when a woman makes the “wrong” choice that may harm her fetus. The legal and social framing of birth injury as a violation of individual rights obscures the state’s responsibility to address birth injury as a social harm necessitating response and reform to societal institutions. Such reform necessarily includes addressing the harm caused by excessive medicalization.
Scholars and advocates arguing for greater state support of midwifery typically ground their theories for state responsibility in regulation of unfair market practices or improved support of maternal decision making. Unfortunately, these arguments only further confine the state and society to their limited roles. This Article instead argues for a responsive state that affirmatively provides a meaningful and safe birthing experience to all women by nature of its obligation to provide its citizens with the tools needed for resiliency. This entails recognizing that birth is not a private event, but rather a social one, stemming from our collective responsibility for societal reproduction. Thus, the state is obligated to recognize and remedy the widespread social harm caused by medicalization of birth.
Part I provides a comprehensive overview of medicalized birth in the United States and its attendant problems. Part II explores the many benefits of midwifery in addressing these issues and the current constraints on the midwifery profession. Part III discusses the state’s limited and problematic attempts to address birth injury. Part IV explores how the medical and cultural privatization of birth as the product of individual choice forecloses meaningful state response, examining birth in the time of COVID-19 as a salient example. Part V then concludes by establishing a better approach to state responsibility that obligates the state to actively promote non-medicalized birth.
Jennifer Hickey, Nature Is Smarter Than We Are: Midwifery and the Responsive State, 40 COLUM. J. GENDER & L. 245 (2021).
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